Citation Nr: 0638221
Decision Date: 12/08/06 Archive Date: 12/19/06
DOCKET NO. 05-06 257 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Philadelphia, Pennsylvania
THE ISSUES
1. Entitlement to service connection for claimed high
cholesterol.
2. Entitlement to an initial evaluation in excess of 10
percent for the service-connected major depressive disorder.
ATTORNEY FOR THE BOARD
A. C. Mackenzie, Counsel
INTRODUCTION
The veteran served had verified active service from June 1977
to June 1980, from March 1987 to March 1990, and from April
1990 to May 2003.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 2003 rating decision issued by
the RO.
The veteran's appeal also initially included the issues of a
higher initial evaluation for the service-connected bronchial
asthma and service connection for contact dermatitis and a
low back disorder.
In his January 2005 Substantive Appeal, however, he
specifically noted that he was limiting his appeal to the two
issues as stated on the front page of this document.
In this case, the veteran requested a hearing and was
scheduled for such a hearing in January 2006. He cancelled
this hearing in December 2005, however. See 38 C.F.R.
§ 20.704(e).
The veteran's claim for a higher initial evaluation for his
service-connected major depressive disorder is addressed in
the REMAND section of this document and is being remanded to
the RO via the Appeals Management Center (AMC), in
Washington, DC.
FINDING OF FACT
The veteran currently is not show to suffer from a chronic
disability that was either caused or manifested by high
cholesterol.
CONCLUSION OF LAW
The veteran does not have a disability manifested by high
cholesterol due to disease or injury that was incurred in or
aggravated by service. 38 U.S.C.A. §§ 1110, 1112, 1113,
1131, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R.
§§ 3.159, 3.303, 3.307, 3.309, 4.1 (2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
On November 9, 2000, the Veterans Claims Assistance Act of
2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107) became law. The regulations implementing the
VCAA provisions have since been published. 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a).
In this case, the Board finds that all relevant facts have
been properly developed in regard to the veteran's claim, and
no further assistance is required in order to comply with
VA's statutory duty to assist him with the development of
facts pertinent to his claim. See 38 U.S.C.A. § 5103A; 38
C.F.R. § 3.159.
Specifically, the RO has obtained records of treatment
reported by the veteran, and there is no indication from the
claims file of additional medical treatment for which the RO
has not obtained, or made sufficient efforts to obtain,
corresponding records.
For reasons described in further detail hereinbelow, an
examination addressing claimed high cholesterol is not
"necessary" in view of 38 U.S.C.A. § 5103A(d) in this case.
The Board is also satisfied that the RO met VA's duty to
notify the veteran of the evidence necessary to substantiate
his claim in a May 2003 letter. By this letter, the RO also
notified the veteran of exactly which portion of that
evidence was to be provided by him and which portion VA would
attempt to obtain on his behalf. See Quartuccio v. Principi,
16 Vet. App. 183 (2002).
In this letter, the veteran was also advised to submit
additional evidence to the RO, and the Board finds that this
instruction is consistent with the requirement of 38 C.F.R.
§ 3.159(b)(1) that VA request that a claimant provide any
evidence in his or her possession that pertains to a claim.
Recently, in Mayfield v. Nicholson, 19 Vet. App. 103, 121
(2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir.
2006), the United States Court of Appeals for the Federal
Circuit (Federal Circuit) held that a comprehensive VCAA
letter, as opposed to a patchwork of other post-decisional
documents (e.g., Statements or Supplemental Statements of the
Case), was required. The Federal Circuit further held that
such a letter should be sent prior to the appealed rating
decision or, if sent after the rating decision, before a
readjudication of the appeal. Id.
Here, the noted VCAA letter was issued prior to the appealed
rating decision, thus posing no procedural defects in view of
Mayfield.
The Board is also aware of the considerations of the United
States Court of Appeals for Veterans Claims (Court) in
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006),
regarding the need for notification that a disability rating
and an effective date for the award of benefits will be
assigned if service connection is awarded.
However, the absence of such notification is not prejudicial
regard to the veteran's service connection claim. With
service connection cases, no disability rating or effective
date is assigned when service connection is denied.
Also, in cases where service connection is granted, it is the
responsibility of the agency of original jurisdiction (here,
the RO) to address any notice defect with respect to the
rating and effective date elements when effectuating the
award. Id.
Accordingly, the Board finds that no prejudice to the veteran
will result from an adjudication of his claim in this Board
decision. Rather, remanding this case back to the RO for
further VCAA development would be an essentially redundant
exercise and would result only in additional delay with no
benefit to the veteran. See Bernard v. Brown, 4 Vet. App.
384, 394 (1993); see also Sabonis v. Brown, 6 Vet. App. 426,
430 (1994) (remands which would only result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran are to be avoided).
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).
Service connection requires competent evidence showing: (1)
the existence of a present disability; (2) in-service
incurrence or aggravation of a disease or injury; and (3) a
causal relationship between the present disability and the
disease or injury incurred or aggravated during service.
Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004);
see also Caluza v. Brown, 7 Vet. App. 498 (1995).
For the showing of chronic disease in service, there is
required a combination of manifestations sufficient to
identify the disease entity and sufficient observation to
establish chronicity at the time. If chronicity in service
is not established, a showing of continuity of symptoms after
discharge is required to support the claim. 38 C.F.R. §
3.303(b).
Service connection may also be granted for any disease
diagnosed after discharge when all of the evidence
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d).
Also, certain chronic diseases, including cardiovascular
diseases, may be presumed to have been incurred during
service if manifested to a compensable degree within one year
of separation from active military service. 38 U.S.C.A.
§§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.
"Disability" means impairment in earning capacity resulting
from diseases and injuries and their residual conditions. 38
C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292,
296 (1991). A symptom, without a diagnosed or identifiable
underlying malady or condition, does not, in and of itself,
constitute a "disability" for which service connection may
be granted. See generally Sanchez-Benitez v. West, 13 Vet.
App. 282 (1999).
Diagnoses of hyperlipidemia, elevated triglycerides, and
elevated cholesterol are actually laboratory results and are
not, in and of themselves, disabilities. They are,
therefore, not appropriate entities for the rating schedule
or disabilities for which VA compensation benefits are
payable. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996)
In the present case, the Board is aware that the veteran was
noted to have elevated cholesterol on multiple occasions
during service and was diagnosed with hyperlipidemia in
October 2002 and January 2003.
While a diagnosis of hyperlipidemia may constitute evidence
of underlying disability or may later cause disability for
compensation purposes, service connection may not be granted
for a laboratory finding. Nothing in the medical evidence
reflects that the veteran has a current disability that was
either caused or manifested by hyperlipidemia (e.g., a
cardiovascular disorder).
In this regard, the Board notes that, to date, the RO has not
afforded the veteran a fully comprehensive VA examination,
with a report containing an opinion as to the etiology of his
claimed high cholesterol. Such an opinion is "necessary"
under 38 U.S.C.A. § 5103A(d) when: (1) there is competent
evidence that the veteran has a current disability (or
persistent or recurrent symptoms of a disability), (2) there
is evidence establishing that the veteran suffered an event,
injury or disease in service or has a disease or symptoms of
a disease within a specified presumptive period, (3) there is
an indication the current disability or symptoms may be
associated with service, and (4) there is not sufficient
medical evidence to make a decision. See 38 U.S.C.A.
§ 5103A(c)(4).
In this case, however, there is no evidence of a current and
chronic disorder encompassing elevated cholesterol and no
reasonable possibility that a VA examination would result in
findings favorable to the veteran. Accordingly, the Board
finds that an etiology opinion is not "necessary." See
generally Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003).
Currently, the only evidence of record supporting the
veteran's claim is his own lay opinion, as indicated in the
January 2005 Substantive Appeal.
The veteran, however, has not been shown to possess the
requisite medical training, expertise, or credentials needed
to render a diagnosis or a competent opinion as to medical
causation.
Accordingly, his lay opinion does not constitute competent
medical evidence and lacks probative value. See Espiritu v.
Derwinski, 2 Vet. App. 492, 494-95 (1992); see also Routen v.
Brown, 10 Vet. App. 183, 186 (1997), aff'd, 142 F.3d 1434
(Fed. Cir. 1988); YT v. Brown, 9 Vet. App. 195, 201 (1996).
Overall, the preponderance of the evidence is against the
veteran's claim of service connection for high cholesterol,
and this claim must be denied.
In reaching this determination, the Board acknowledges that
VA is statutorily required to resolve the benefit of the
doubt in favor of the veteran when there is an approximate
balance of positive and negative evidence regarding the
merits of an outstanding issue.
That doctrine, however, is not applicable in this case
because the preponderance of the evidence is against the
veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49,
55 (1990); 38 U.S.C.A. § 5107(b).
ORDER
Service connection for high cholesterol is denied.
REMAND
During his April 2005 VA psychiatric examination, the
examiner noted that the veteran continued to have stress from
marital conflicts and that he was currently receiving both
individual counseling and marriage counseling from "Dr.
Blackburn."
Treatment records from this counselor may contain probative
findings in regard to the veteran's claim for a higher
initial evaluation for his service-connected major depressive
disorder and should be obtained, if possible, prior to Board
action on that claim. 38 C.F.R. § 3.159(c)(1).
Accordingly, this remaining matter is REMANDED to the RO for
the following action:
1. A letter should be sent to the
veteran explaining, in terms of
38 U.S.C.A. §§ 5103 and 5103A, the need
for additional evidence regarding his
claim for a higher initial evaluation for
his service-connected major depressive
disorder. The letter must inform the
veteran about the information and
evidence that is necessary to
substantiate the claim, notify him of the
type of evidence that VA will seek to
provide, inform him of the type of
evidence that he is expected to provide,
and request that he provide any and all
relevant evidence currently in his
possession.
The veteran should also be notified that,
in cases where service connection is
granted, both a disability evaluation and
an effective date for that evaluation
will be granted. See Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006).
2. After securing the necessary
releases, specifically with regard to
"Dr. Blackburn," all records of mental
health treatment which are not currently
associated with the veteran's claims file
should be requested. All records secured
by the RO must be included in the
veteran's claims file. If the search for
such records has negative results,
documentation to that effect should be
included in the veteran's claims file.
3. After completion of all indicated
development, the veteran's claim for a
higher initial evaluation for his
service-connected major depressive
disorder should be readjudicated. If the
determination remains less than fully
favorable to the veteran, he should be
furnished with a Supplemental Statement
of the Case and given an opportunity to
respond.
Then, if indicated, this case should be returned to the Board
for the purpose of appellate disposition. The veteran has
the right to submit additional evidence and argument on this
matter. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006).
____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge,
Board of Veterans' Appeals
Department of Veterans Affairs